Ginny v. White Jimmie D. White v. Ford Motor Company, a Delaware Corporation, and Orscheln Company, a Missouri Corporation

312 F.3d 998 Ginny V. WHITE; Jimmie D. White, Plaintiffs-Appellees, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant-Appellant, and Orscheln Company, a Missouri corporation, Defendant. No. 99-15185. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 1, 2000. Filed December 3, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Andrew L. Frey (argued), Mayer, Brown, Rowe & Maw, New York, NY, Evan M. Tager and Miriam R. Nemetz (briefed), Mayer, Brown, Rowe & Maw, Washington, DC, and W. Chris Wicker (briefed), Woodburn & Wedge, Reno, NV, for the appellant. Shanin Specter (argued), Kline & Specter, P.C., Philadelphia, PA, Don Nomura, Laxalt & Nomura, LTD., Reno, NV, for the appellees. Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding, D.C. No. CV-95-00279-DWH. Before WOOD 1 , KLEINFELD, and GRABER, Circuit Judges. Opinion by Judge Kleinfeld; Partial Concurrence and Partial Dissent by Judge Graber. OPINION KLEINFELD, Circuit Judge: 1 This decision addresses several issues, the most important of which relate to punitive damages. 2 Facts 2 This case went to jury…

Opinion by Judge Kleinfeld; Partial Concurrence and Partial Dissent by Judge Graber.

OPINION

This decision addresses several issues, the most important of which relate to punitive damages. 2

*1002 Facts

This ease went to jury trial, but on the critical factual points, there is not much dispute. Where there is, the facts are of course taken favorably to the verdict. 3

On October 9, 1994, Jimmie White parked his company’s 1993 Ford F-350 pickup truck in Ms driveway. The driveway is sloped, not level, and the truck was parked on the slope pointing downhill. Mr. White testified that he put the truck into first gear, set the parking brake by stepping on the brake pedal, and went inside. He did not lock the truck.

The Whites’ three-year-old son Walter was playing outside, with Mrs. White checking on him through the window from time to time. While she wasn’t watching, Walter got into his father’s pickup truck. The Whites’ theory of the case was that Walter pulled or kicked it out of first gear into neutral. The gearshift lever is a long stalk sticking up from the floor. A piggy bank turned up under the seat after the accident, so Walter may have been clambering after his lost piggy…

concurring in part and dissenting in part:

I concur in the majority’s opinion-except as to Part 4. In my view, the majority fails to adhere to the Supreme Court’s guidance in analyzing punitive damages. 1 Therefore, I respectfully dissent from Part 4 and from the remand for further proceedings.

A. Standard of Review

In civil cases, we generally review de novo the question whether a jury instruction misstates the applicable law. Navellier v. Sletten, 262 F.3d 923, 944 (9th Cir.2001), cert denied, — U.S. -, 122 S.Ct. 2623 , 153 L.Ed.2d 806 (2002). We generally review the particular formulation of civil jury instructions for abuse of discretion. Neibel v. Trans World Assurance Co., 108 *1021 F.3d 1123, 1129 (9th Cir.1997); Fikes v. Cleghorn, 47 F.3d 1011, 1013 (9th Cir.1995); Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1481 (9th Cir.1992). “In evaluating jury instructions, prejudicial error results when, looking to the instructions as a whole, the substance of the applicable law was [not] fairly and correctly covered.” Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir.2001) (alteration in original) (citations and internal quotation marks omitted), cert. denied, 535 U.S. 1018…